Citation Nr: 21071570 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 11-28 967 DATE: November 30, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as due to environmental exposures during the Gulf War, is denied. FINDING OF FACT The probative evidence weighs against finding that the Veteran's OSA was at least as likely as not caused by, aggravated by, or otherwise related to his service, including his environmental exposure to burn pits in Southwest Asia. CONCLUSION OF LAW The criteria for entitlement to service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1117, 5107 (2012); 38 C.F.R. §§ 3.102, 3.317 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran was on active duty from February 2003 to June 2004, including in Southwest Asia, and also had reserve service including periods of active duty for training (ACDUTRA). This appeal originates from a January 2016 Rating Decision, in which the Agency of Original Jurisdiction (AOJ): granted reopening of entitlement to service connection for a sleep disorder; and denied entitlement to service connection for sleep apnea. In July 2016, the Veteran testified at a Board Videoconference Hearing before the undersigned Veterans Law Judge. In a March 2017 Decision, the Board: granted reopening of entitlement to service connection for a sleep disorder; and remanded entitlement to service connection for a sleep disorder, recharacterized as OSA. In an October 2019 Decision, the Board denied entitlement to service connection for OSA. In a September 2020 Joint Motion for Remand (JMR), the U.S. Court of Appeals for Veterans Claims (Court) vacated and remanded the October 2019 Board Decision. In February 2021 and June 2021 Decisions, the Board remanded entitlement to service connection for OSA. 1. Entitlement to service connection for OSA Direct service connection may be warranted if the evidence shows: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Although a competent medical opinion is generally required to establish etiology, competent and credible lay evidence of chronicity and continuity of symptomology may also establish etiology for certain chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Service connection may also be granted on a presumptive basis to Persian Gulf veterans who exhibit objective indications of a chronic disability resulting from undiagnosed illness or a medically unexplained chronic multisymptom illness that became manifest either during active military service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(i)-(ii). A qualifying chronic disability means a chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2). For purposes of 38 C.F.R. § 3.317, objective indications of chronic disability include both "signs" in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). In addition, disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. 38 C.F.R. § 3.317(a)(4). A chronic disability does not meet the statutory requirements of 38 C.F.R. § 3.317 if there is affirmative evidence that the disability was not incurred during active military service in the Southwest Asia theater of operations or if there is affirmative evidence that the disability was caused by a supervening condition or event or was due to the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(a)(7)(i)-(iii). The Veteran generally contends that his OSA is etiologically related to his service and, specifically, his exposure to burn pit smoke in Southwest Asia. See October 2007 Statement; September 2015 VA Form 21-526EZ; January 2016 VA examination; March 2016 Buddy Statement by JW (fellow servicemember); March 2016 Buddy Statement by HP (fellow servicemember); July 2016 Board Hearing transcript; July 2016 Statement with attachments; September 2020 Court JMR. Service treatment records fail to document any complaints, treatment, or diagnoses related to obstructed upper airways or sleep problems. To the contrary, the Veteran repeatedly denied pertinent symptoms (including trouble sleeping, shortness of breath, and still feeling tired after sleeping) throughout service, including in March 2004 (immediately post-Southwest Asia deployment during which the Veteran contends his OSA symptoms began). See February 1985 examination; May 1989 examination; July 1993 examination; January 1998 examination; January 2003 pre-deployment examination; March 2004 post-deployment assessment. In an October 2007 Statement, the Veteran reported that: his service caused him to sleep in an abnormal manner; his level of disability has increased; and his sleep disorder causes severe problems in his day-to-day life. An April 2015 Birmingham VAMC record, the Veteran reported snoring, daytime sleepiness, and difficulty staying asleep; the provider ordered a sleep study to check for sleep apnea. An August 2015 Birmingham VAMC record documented the Veteran's report of snoring since 2003 or 2004, sleep study results interpreted as mild OSA, and provider recommendations of CPAP use, positional therapy, and weight loss. In a September 2015 VA Form 21-526EZ, the Veteran contended that his sleep apnea was related to environmental hazards in the Gulf War; he also submitted the August 2015 sleep study diagnosing OSA. The January 2016 VA Gulf War General Medical examiner indicated that there was not any diagnosed illness for which no etiology was established. During the January 2016 VA sleep apnea examination, the Veteran reported having snoring and pausing in breathing while sleeping since 2003 or 2004. The examiner opined that the OSA was a disease with a clear and specific etiology and diagnosis that was less likely than not related to a specific exposure event experienced in Southwest Asia. A March 2016 Buddy Statement by JW (fellow servicemember) contended that: JW slept in the same area as the Veteran in Kuwait; there were many nights that Veteran snored really loudly; it seemed that, as time went on, the snoring got worse; and they had to guard a burn pit which probably did not help the snoring. A March 2016 Buddy Statement by HP (fellow servicemember) contended that: in Kuwait, HP bunked next to the Veteran; HP noticed the Veteran's erratic sleeping behavior, such as snoring loudly and seeming to stop breathing; with time, the Veteran's sleeping habits seemed to deteriorate and he and several others voiced concern to the Veteran; the Veteran went to sick call for sinuses; and, after getting medical attention, the Veteran's fellow servicemembers learned to live with his habits. During the July 2016 Board Hearing, the Veteran testified that: he believes his sleep apnea stems from the active duty period in Kuwait; he had to guard burn pits that were always burning and producing smoke; he was still in close proximity to the burn pits even when off guard duty; they would burn everything including human waste and chemicals; his sleeping habits were good before Kuwait (had no problems, did not hear people complaining about it, and had no sinus problems); after arriving in Kuwait, his sleeping changed (was tired a lot of times, was snoring, had running nose and eyes, and did not sleep well); people around him were irritated by his snoring; after returning from Kuwait, he was still tired, had restless sleep, and his spouse complained about snoring and restlessness with sweating; he was diagnosed with sleep apnea in 2015; and he has had the same sleep apnea symptoms ever since they began in service, including daytime hypersomnolence. In a July 2016 Statement with attachments, the Veteran submitted a photo near a burn pit and also submitted a September 27, 2003, service treatment record that: documented the Veteran's complaints of runny nose, itchy/watery eyes, and some congestion at night; found lungs clear, ears normal, nose red, and throat red on examination; diagnosed allergic rhinitis; and prescribed Allegra and Flonase. Notably, the September 2003 service treatment record is silent regarding disordered breathing, obstructed upper airway, snoring, tiredness, or other sleep apnea symptoms. During the August 2019 VA sleep apnea examination, the Veteran reported that, while in Kuwait in 2003: other service members complained of his snoring; he was seen for it in 2004 and was told it was allergies; and he was seen again in 2008 for snoring but was not diagnosed with OSA until the August 2015 sleep study. The Veteran reported concurrent symptoms of persistent daytime hypersomnolence and waking up tired. The August 2019 VA examiner also rendered an unfavorable etiological opinion; however, the Board will not discuss it further because the Court's September 2020 JMR found it to be inadequate for failure to consider the Veteran's testimony regarding his environmental exposure to burn pits, as instructed in the March 2017 Board directives. Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). A March 2021 VA examiner also rendered an unfavorable etiological opinion; however, the Board will not discuss it further because the Board's June 2021 Decision found it to be inadequate for failure to consider the Veteran's testimony regarding his environmental exposure to burn pits, as instructed in the March 2017 and February 2021 Board directives. Stegall, supra; Barr, supra; Nieves-Rodriguez, supra. After the most recent Board Remand in June 2021, the AOJ obtained two etiological opinions (in July 2021 and September 2021). First, a July 2021 VA examiner rendered an unfavorable etiological opinion; however, the Board will not discuss it further because it is inadequate for failure to consider the Veteran's testimony regarding his environmental exposure to burn pits, as instructed in the March 2017 and February 2021 Board directives. Stegall, supra; Barr, supra; Nieves-Rodriguez, supra. Fortunately, the AOJ recognized this inadequacy and requested an addendum opinion in August 2021 before recertifying the appeal to the Board. See August 2021 Exam Request. The September 2021 addendum opinion was also unfavorable, but adequate because the examiner specifically addressed the Veteran's contentions regarding environmental exposures. The examiner explained that: toxic exposures, including those encountered in Southwest Asia, are not associated with the later development of OSA; any respiratory condition due to exposure of the type encountered in Southwest Asia would be evident at that time or proximate to service (rather than 11 years post-separation); the exposures the Veteran described during the Board Hearing less likely than not caused the OSA because, although it is possible that the Veteran had oropharyngeal symptoms due to such exposures, that does not constitute OSA or have any impact on it; the likely responses to those exposures would be irritation, watery, irritated eyes, sore throat, symptoms of rhinitis, et cetera; and the Veteran's August 2015 diagnosis of OSA was mild and any impact of such exposures would have manifested well prior to that time (making it a greater likelihood that the OSA would have been more severe at the time of diagnosis if it was due to service, including the environmental exposures). Based on the evidence above, the Board finds that the probative evidence weighs against finding that the Veteran's OSA was at least as likely as not caused by, aggravated by, or otherwise related to his service, including his environmental exposure to burn pits in Southwest Asia. Although the Board acknowledges the competent lay testimony by the Veteran and others regarding pertinent, lay-observable symptoms since service, the Board highlights that this testimony cannot establish etiology based on chronicity and continuity of symptomology because the continuity of symptomatology language in 38 C.F.R. § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a), among which OSA is not included. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Further, presumptive service connection under 38 C.F.R. § 3.317(a)(1)(i)-(ii) is precluded because the Veteran's sleep symptoms have already been attributed to a known clinical diagnosis (OSA). (Continued on the next page) Additionally, the evidence does not indicate that the Veteran has the medical background necessary to competently render an etiological opinion regarding a medically-complex issue or attribute his lay-observable symptoms to a diagnosis that is not lay observable (as OSA requires diagnosis through polysomnogram); he also has not submitted any favorable etiological opinions from private providers to rebut the unfavorable etiological opinion by the September 2021 VA examiner. Jandreau, supra; Layno, supra. Finally, the competent medical evidence of record does not indicate an etiological relationship between the OSA and service (including the environmental exposures) and the September 2021 VA examiner's conclusion is consistent with the other pertinent medical records in the claims file (including service records and VA treatment records that are silent regarding an indication of an etiological relationship between the current disability and service, including the in-service exposures). Ultimately, the Board assigns more probative weight to the medical evidence of record, specifically the September 2021 VA opinion, rendered by trained medical professionals based on appropriate diagnostic testing and reasonably-drawn conclusions with supportive rationale. Thus, because the preponderance of the probative evidence weighs against the claim, service connection is not warranted and the Board must deny the claim. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Daus, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.